The Same Republicans Who Pushed For Invasive Surveillance Are Complaining About It Now

The chairman of the House Intelligence Committee, Devin Nunes, is not particularly concerned by the fact that former National Security Adviser Michael Flynn discussed sanctions against Russia with the Russian ambassador during the transition. Nor is Nunes worried about evidence that Paul Manafort and other Trump aides were in frequent contact with Russian intelligence officials during the presidential campaign. But he is shocked—shocked—that the communications of Trumps’ confidantes were obtained by U.S. intelligence agencies. “The big problem I see here,” he huffed, “is that you have an American citizen who had his phone calls recorded.”

Either Nunes is being disingenuous, or he is suffering from catastrophic memory loss. On multiple occasions in the past decade, Nunes, along with the other Republican lawmakers now complaining about the surveillance, has enthusiastically backed the law that allows the warrantless domestic collection of millions of Americans’ calls and emails each year.

For decades, such surveillance was prohibited under the 1978 Foreign Intelligence Surveillance Act. After the Church Committee revealed a sordid three-decade history of intelligence abuses, Congress enacted FISA to protect Americans from warrantless surveillance masquerading as “foreign intelligence” collection. The law required the government, when acting inside the United States, to obtain permission from a secret court before intercepting communications between foreigners and Americans. The FISA Court could approve the surveillance only if the government showed probable cause that the target was a foreign power or its agent—such as a foreign government official, or an American conducting espionage for another nation.

After Sept. 11, the law underwent a sea change. In Section 702 of the FISA Amendments Act of 2008—legislation supported by Nunes, along with 187 other House Republicans and 105 Democrats—Congress gutted FISA’s key protections in order to legalize the Bush administration’s warrantless wiretapping program. Congress reauthorized the law in 2012, again with Nunes’ support.